Vicarious liability

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 28 June 2019

Employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person's employment. This is known as vicarious liability.

In order to minimise their liability, employers need to demonstrate they have taken all reasonable steps to prevent discrimination or harassment from occurring in the workplace and they have responded appropriately to resolve incidents of discrimination and harassment.

b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 4 or 6 or this Part--

both the person and the employer or principal must be taken to have contravened the provision and a person may bring a dispute to the Commissioner for dispute resolution or make an application to the [Victorian Civil and Administrative] Tribunal against either or both of them.

Section 110 goes on to provide a defence against vicarious liability. It relevantly provides:

Exception to vicarious liability

An employer or principal is not vicariously liable for a contravention of a provision of Part 4 or 6 or this Part by an employee or agent if the employer or principal proves, on the balance of probabilities, that the employer or principal took reasonable precautions to prevent the employee or agent contravening this Act.

In proving a claim of vicarious liability, therefore, both the following need to be established:

the conduct complained of must have occurred in the course of employment or while acting as an agent for another

the employer or principal has not taken reasonable precautions to prevent the employee or agent from contravening the Equal Opportunity Act.

In the course of employment

Various cases have tested how far reaching the concept of 'in the course of employment' can be.

The employer argued the conduct did not occur 'in the course of employment'. The claim related to an act of inappropriate sexual contact by Mr Buttigieg with the complainant, Ms Coyne. The employer's position was that Mr Buttigieg's conduct was not in the course of his employment as it was 'plainly tortious (and) the wording of section 102 of the Act, read ordinarily, does not cover a plainly tortious conduct of its employees'. The employer sought to rely on the principles of vicarious liability under the 1995 Act with common law notions of vicarious liability. VCAT summarised the employer's position as follows:

Before an employee's conduct may be said to have been 'in the course of employment' the injury caused must have occurred whilst the employee is 'doing something which is part of his service to his employer or master or incidental to the employment': South Maitland Railways Pty Ltd v James[1943] HCA 5 (per Starke J). Alternatively, the employee's conduct may also be within 'the course of employment' if expressly or impliedly authorised by the employer.

On this basis, it was submitted that Mr Buttigieg's conduct in exposing himself and grabbing the Complainant's vagina was not merely an improper mode or means of carrying out his authorised tasks but it was also a criminal sexual assault. As such, it was contended Mr Buttigieg's conduct did not occur in the course of his employment. It was said to be in no way related or incidental to, or consequent upon, anything required of him in his role as an employee in the canteen area where his job was to collect rubbish, clear tables and clean the canteen.

VCAT concluded common law concepts of what amounts to 'in the course of employment' ought not be applied to the interpretation of section 102 of the 1995 Act. It came to this view for the following reasons:

applying the common law concepts would not further the objects of the Act

the 1995 Act is beneficial and remedial legislation and, therefore, 'should be given a "fair, large and liberal" interpretation' and ought to be given an interpretation that as far as possible aides the elimination of sexual harassment (citing IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1)

the concept of 'in the course of employment' in the 1995 Act ought to be construed by reference to 'the intention of the legislature underlying the Act … the Act is an example of legislation protecting human rights and dignity'. (Reference was also made to the comments of Justice Dawson and Justice Gaudron in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 in which they stressed 'there is special responsibility to take account of and give effect to the purpose of legislation designed to protect basic human rights and dignity')

the mere fact that Parliament used words that had a common law meaning did not necessarily evidence that it intended that meaning to be attributed to those words in this instance

section 102 must contemplate that an employer may be held vicariously liable for conduct that it had not expressly authorised, otherwise section 102 (which establishes the defence to vicarious liability would be unnecessary).

VCAT sought guidance from cases in the workers' compensation jurisdiction in interpreting the term 'in the course of employment'. In reviewing the case law on this point, VCAT noted the courts' approach to this issue has moved to a fairly flexible one. At page 12 (of Coyne v P & O Ports), VCAT summarised the interpretation given in the workers' compensation context as follows:

[A]n injury might be said to have arisen 'out of or in the course of employment' if sustained in an interval or interlude and occurring within an overall period or episode of work. That would be so if the employer had, expressly or impliedly, induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.

VCAT went on to say:

In our view, even at this infancy stage of its jurisprudence, a restricted approach to the phrase 'in the course of employment' ought not to be adopted in sexual harassment situations as regulated by the Act. That could tend to defeat the objectives of the Act … it is not unlikely that the prohibition of sexual harassment in the workplace may be at serious risk of being frustrated if a narrow approach were adopted. That could be so, for instance, if the words 'in the course of employment' were taken to cover only conduct that related to anything required of the employee by his employer. One effect of that could be that employers may not be held vicariously responsible for a wide variety of conduct constituting sexual harassment in the workplace. This is particularly in so far as, strictly speaking, sexual harassment of a fellow employee cannot be said to be incidental to the purposes for which the discriminator-employee is engaged by the employer. Such a result cannot have been intended by the legislature when enacting the Act.

The words 'in connection with' mean no more than that the relevant acts were done during the course of the person's employment or whilst he or she was ostensibly performing duties of an agent.

Applying these principles to the facts in this case, VCAT considered Mr Buttigieg's conduct occurred in the course of his employment for the purpose of the vicarious liability provisions of the 1995 Act.

Reasonable precautions defence

If a complainant can establish an employee or agent engaged in conduct that, if engaged in by the employer or principal, would constitute a breach of the Equal Opportunity Act, then both the employee/agent and the employer/principal will be held liable. The exception is when the employer/principal can show they took all reasonable precautions to prevent the discrimination, sexual harassment or victimisation.

The steps that need to be taken to avoid liability under section 110 are not specified in the legislation. The definition of what is a 'reasonable precaution' will vary, depending on factors such as:

the size of the business or operation

the nature and circumstances of the business or operation

available resources

business and operation priorities

practicability and costs of the measures.

However, some of the steps that employers/principals may be expected to take include:

identifying potential areas of non-compliance

developing a compliance strategy, such as undertaking training or developing policies

reviewing or improving compliance policies or strategies where relevant.

The Victorian courts have considered what practical steps are required of a duty holder to discharge this burden. In Howard v Geradin Pty Ltd t/a Harvard Securities[2004] VCAT 1518 for example, the employer avoided being held vicariously liable for claims of sexual harassment. It had in place a sexual harassment policy, informed all employees of it, implemented it and provided regular informal feedback about sexual harassment. While it was held the steps taken had not been 'ideal', or of the highest possible standard, they were sufficient to provide a successful defence.

In considering whether Toyota had taken 'all reasonable precautions', VCAT considered the following steps taken by Toyota were sufficient to discharge the burden:

rolling out a workplace policy to all employees, which had been done three years prior to the incident in question

meeting with all employees to discuss the policy

issuing all employees with a booklet explaining the policy.

In discussing what is reasonable for the purposes of avoiding vicarious liability, VCAT noted the criteria for duty holders is 'not very high or very exacting'. VCAT went on to say 'management cannot be expected to supervise every word that comes out of the mouth of a worker' [98].

VCAT's focus in each of these cases was on the relevant policies that the respective duty holders had in place, the implementation of these policies, and that employees had been trained on these policies. These steps were crucial in establishing successful defences to the allegations of discrimination, without the policies, implementation or training having to be of optimum standards.

The importance of an employer having effectively communicated its policies to its employees was emphasised in State of Victoria v McKenna[1999] VSC 310 (discussed in Inferring a reason for the treatment). In this case, Victoria Police had distributed a folder on sexual harassment obligations to senior officers. It also made the training a prerequisite for promotion. However, none of the key players in that case had received any training. The materials distributed had been aimed principally at managers, supervisors and contact officers of the police force. A copy had been kept at the office of the officer in charge of each station. On this basis, VCAT held the burden on the employer to take all reasonable precautions had not been discharged.

In considering whether the employer had taken all reasonable steps to prevent the employee from contravening the Anti-Discrimination Act 1977 (NSW), the Tribunal noted:

It is not enough for an employer merely to institute policies; the policies need to be implemented and brought to the attention of the employees in a meaningful way. By failing to do so the employer may be found to have authorised the conduct (Cooper v Western Area Local Health Network[83]).

In this case, the steps taken by the employer were considered sufficient to meet the defence. The Tribunal found it had taken all steps it could have to ensure its employees were aware of the various policies affecting their conduct at work and the necessity to abide by them, including penalties if they did not do so. As a result, the employer was not found to be vicariously liable for the sexual harassment that had occurred.

Mr Zareski brought a number of complaints of race, disability and carer's discrimination against Hannanprint. These complaints were not upheld, but the Tribunal found that Mr Zareski's team leader had victimised him by mocking him for bringing the discrimination complaints.

As a consequence, the Tribunal ordered further training that Hannanprint must provide to its human resources specialists, managers and supervisors.

Hannanprint proposed to the Tribunal that several training sessions would be provided by an external law firm. Each session would be attended by a maximum of 12 people. The sessions would cover areas such as complaint handling procedures, processes for conducting formal investigations, and recording interviews. The Tribunal approved this proposal. Though no finding of liability was made regarding the allegations of discrimination, bullying and harassment, the Tribunal also said that refresher training in these areas must be provided.

The New South Wales legislation regarding vicarious liability in discrimination matters and the 'all reasonable steps' defence does not differ significantly from the Victorian legislation. The decisions discussed above indicate the standard expected of employers to demonstrate that all reasonable precautions were taken to prevent the alleged act(s) has not been set high. See Howard v Geradin Pty Ltd [2004] VCAT 1518. Where there is a finding of vicarious liability, specific and detailed orders can be made for future training requirements with which the duty holder must comply.

Multiple respondents

here vicarious liability exists, the person who commits a wrongful act and the one who is held vicariously liable are jointly liable. Each person is liable for the entire loss. If one person satisfies the loss, the liability of the others is discharged.

it is unnecessary to name individual employees as respondents to establish an employer's vicarious liability. A complainant may choose to sue one or all the possible respondent.